IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE OF THE STATE OF Case No. H019369 CALIFORNIA, Plaintiff and Petitioner, (Santa Clara County Superior v. Court No. 200708 THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent, HIKMAT MUSTAFA MOUCHAOURAB, Real Party in Interest. Writ Proceedings Related to Santa Clara County Superior Court No. 200708 The Honorable Melinda Stewart Presiding MOTION BY CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE FOR PERMISSION TO FILE AN AMICUS BRIEF UNDER RULE 14(C AND BRIEF ON THE MERITS SUPPORTING RESPONDENT AND REAL PARTY JOHN T. PHILIPSBORN, ESQ. State Bar No. 83944 507 Polk Street, Ste. 250 San Francisco, CA 94102 Tel.: (415 771-3801 Attorney for Amicus Curiae CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE

TABLE OF CONTENTS Page I. MOTION FOR PERMISSION TO APPEAR AS AMICUS CURIAE 2 A. Description of Amicus Party 2 B. Statement of Interest of Amicus Curiae 3 C. Conclusion to Motion For Permission to Appear 5 II. BRIEF ON THE MERITS 5 A. Introduction 5 B. ARGUMENTS 7 I PETITIONER FAILS TO RECOGNIZE THE SIGNIFICANCE IN CALIFORNIA CRIMINAL PROCEDURE OF THE TRANSITION FROM GRAND JURY INVESTIGATION TO CONTESTED ADJUDICATION IN COURT 7 II CALIFORNIA HAS TRADITIONALLY RECOGNIZED JUDICIAL SUPERVISION OF THE GRAND JURY PROCESS, AND BOTH PROCEDURAL RULES AND POLICY ARGUMENTS SUPPORT THE DISCLOSURES ORDERED HERE 12 CONCLUSION 14 i

TABLE OF AUTHORITIES Page Federal Cases Douglas Oil v. Petrol Stops Northwest (1979 441 U.S. 211 8,9-10 U.S. v. Procter & Gamble (1958 356 U.S. 677 8 State Cases Cummiskey v. Superior Court (1992 3 Cal.4th 1018 3,9,13,14 Daily Journal Corporation, et al. v. Orange County Superior Court (Supreme Court Case No. S072133 3 Ex Parte Sternes (1889 82 Cal. 245 12 In re Request for Transcripts of Phase 3 Grand Jury Proceedings (1998 4th DCA No. G022076 3 In re Shuler (1930 210 Cal.377 12 McClatchy Newspapers v. Superior Court (1988 44 Cal.3d 1162 8 Mannon v. Frick (Mo. 1956 295 S.W.Rptr 2d 158 13 People v. Superior Court (1973 Grand Jury (1975 13 Cal.3d 430 10,13 Walker v. Superior Court (1991 53 Cal.3d 257 12-13 Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986 176 Cal.App.3d 1108 13 Constitutions United States Constitution (generally 13 ii

California Constitution (generally 13 STATUTES State California Rules of Court Rule 14(c 2,5 California Penal Code Generally 5,6,12,13,14 section 924.2 6 section 924.4 6 section 924.6 6 section 938.1 6 section 938.1(b 12,13 section 995 9 section 999(a 9 sections 1054, et seq. 5 section 1054(a 6 section 1054.1 6 section 1054.2 6 section 1054.3 6 California Ballot Initiative Proposition 115 3 Texts and Other Authorities Judicial Council Report to the Governor and Legislature, January 4, 1971, p. 20 11 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. H019369 Plaintiff and Petitioner, (Santa Clara County Superior v. Court No. 200708 1

THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent, HIKMAT MUSTAFA MOUCHAOURAB, Real Party in Interest. MOTION BY CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE FOR PERMISSION TO FILE AN AMICUS BRIEF UNDER RULE 14(C AND BRIEF ON THE MERITS SUPPORTING RESPONDENT AND REAL PARTY TO: THE HONORABLE PRESIDING JUSTICE, AND HONORABLE ASSOCIATE JUSTICES OF THE SIXTH APPELLATE DISTRICT; California Attorneys for Criminal Justice (hereafter CACJ, through their attorney, John T. Philipsborn, respectfully apply for permission to file a brief as an amicus curiae in the above-captioned matter under Rule 14(c of the California Rules of Court. In order to avoid further delay in scheduled proceedings in this matter, CACJ also proffers their brief on the merits. I. MOTION FOR PERMISSION TO APPEAR AS AMICUS CURIAE A. Description of Amicus Party California Attorneys for Criminal Justice (CACJ is a nonprofit California corporation. According to Article IV of its by-laws, CACJ was formed to achieve certain objectives including "to protect and insure by rule of law those individual rights guaranteed by the California and Federal 2

Constitutions, and to resist all efforts made to curtail such rights." In addition, the organization has as a purpose to engage in activities which will advance and promote "justice and the common good of the citizens of the United States." (Article IV, subparagraphs A and C, by-laws of CACJ. CACJ is administered by a Board of Governors, made up of criminal defense lawyers practicing within the state of California. The organization has approximately 2,400 dues-paying members who are primarily criminal defense lawyers practicing before federal and state courts. These lawyers are employed both in the public and private sectors, and are distributed around the state. CACJ often appears as an amicus curiae before the state Supreme Court and the Courts of Appeal in cases of importance to its membership. B. Statement Of Interest Of Amicus Curiae. CACJ has appeared in the courts of this state on issues specifically related to Grand Jury practice. For example, CACJ appeared before the state Supreme Court in the aftermath of the passage of Proposition 115 when various aspects of the indictment procedure were opened to question and discussed in Cummiskey v. Superior Court (1992 3 Cal.4th 1018, 1021. More recently, and perhaps more pertinent to the specific issues presented here, CACJ has appeared before the state Supreme Court in Daily Journal Corporation, et al. v. Orange County Superior Court (Supreme Court No. S072133, a case in which the Supreme Court granted review of the published decision issued by the Court of Appeal for the Fourth Appellate District, Division 3, on June 16, 1998 in In re Request for 3

Transcripts of Phase 3 Grand Jury Proceedings (Case No. G022076, a litigation in which CACJ also appeared as an amicus. 1 CACJ's membership defends persons who have been formally accused through the Grand Jury process. Thus, CACJ has a direct interest in ensuring the integrity of proceedings initiated through use of the Grand Jury, and in seeking to protect the rights of individuals whose presence in court may have been the result of irregularities in the Grand Jury process. CACJ joins Real-Party-In-Interest in this case in urging this Court to affirm Respondent's Order which was properly issued, and is fully supported for the reasons set forth in Real-Party-In-Interest's Opposition, as well as for the reasons set forth below. CACJ is familiar with the issues presented in this litigation. CACJ has reviewed the motion filed in Respondent Superior Court by Real-Party- In-Interest, aspects of the record made in Respondent court, the Petition filed by the Office of the District Attorney for the County of Santa Clara, the Opposition to Petition filed by the Office of the Santa Clara Public Defender on behalf of Real-Party-In-Interest, and finally the Reply Brief filed by Petitioner. CACJ submits briefing on two important issues which it believes are presented by this litigation, and should be addressed in and by this Court's decision. First, Petitioner fails to recognize the significance in California criminal procedure of the transformation of a case investigated by the 1 CACJ's appearance is noted at page 1 of the slip opinion of the Court of Appeal's decision. CACJ has already filed its brief before the state Supreme Court, though no decision has been forthcoming to date. 4

Grand Jury into a contested court proceeding. Second, in addition to the constitutional bases urged by Real Party for supporting Respondent's Order, it is clear that both the structures and policies underlying the California Grand Jury practice support the exercise of discretion and disclosures that occurred here. C. Conclusion to Motion For Permission to Appear For the reasons stated above, CACJ respectfully requests that the Court permit it to appear, as its brief is timely and will not delay proceedings. California Rule of Court 14(c permits the filing of briefs such as this, and CACJ respectfully submits that this application fulfills the conditions set forth in Rule of Court 14(c. II BRIEF ON THE MERITS A. Introduction Petitioner's position is relatively simple. First, Respondent abused its discretion in granting the motion to augment by violating what Petitioner contends is the "historical and statutory secrecy rule of Grand Jury procedure" (Petition for Writ at p. 4. Petitioner reiterates this position in the Reply Brief, leaning heavily on the references to the portions of the Penal Code which provides secrecy of specific Grand Jury proceedings. Petitioner contends that in any event Real Party's augmentation request exceeds the discovery in criminal cases permitted under Penal Code Sections 1054, et seq. Real Party supports Respondent's Order by reviewing case law 5

demonstrating that the extent and duration of Grand Jury secrecy is dependent in part on circumstances determined by courts in given cases (Opposition at pps. 15-17. Real Party goes on to argue that vacating Respondent's Order would result in violations of equal protection and due process under both the California and Federal analysis, would deprive Real Party of his right to counsel, and also would strip the Court of its supervisory role over the Grand Jury. CACJ respectfully submits that Petitioner's arguments cannot support vacating Respondent's Order. First, as Real Party argues, and is further demonstrated below, it is clear that once a case has made the transition from investigation to adjudication before a constitutionally recognized court, that court has inherent power to regulate the proceedings before it. That court may interpret the Penal Code so as to give meaning to the specific proceedings at issue, and to review alleged procedural errors in the uses made of the Grand Jury by the executive branch. To maintain that courts do not have that power makes no sense given the constitutionally required structure of criminal case adjudications. Second, Petitioner's preemption arguments, rooted in the existence of the reciprocal discovery scheme are off base. By its own terms, criminal case discovery law pertains to the trial of a case. (See Penal Code Section 1054(a, and 1054.1; 1054.2; 1054.3 There is no element in any of the cases relied on by Petitioner that supports his arguments regarding the preeminence of the reciprocal discovery law in relation to judicial review of the Grand Jury process. 6

Finally, recognizing the value of Real Party's wide-ranging discussion, CACJ respectfully urges this Court to uphold Respondent's ruling on the ground that not only does the law permit the exercise of discretion engaged in here, but also policy considerations as discussed in some detail by Real Party which require a decision supporting Respondent. B. ARGUMENTS I PETITIONER FAILS TO RECOGNIZE THE SIGNIFICANCE IN CALIFORNIA CRIMINAL PROCEDURE OF THE TRANSITION FROM GRAND JURY INVESTIGATION TO CONTESTED ADJUDICATION IN COURT Petitioner is quite correct that there is a statutory structure surrounding, and announcing, California Grand Jury procedure. But in this case, the question is whether there are both legal and policy based reasons for ruling that courts cannot open formerly secret Grand Jury records to scrutiny by a person formally accused by the Grand Jury. The United States Supreme Court noted that there were five reasons favoring Grand Jury secrecy rules. These were: to prevent the escape of those for whom indictment may be contemplated; to ensure the freedom of the Grand Jury in its deliberations and to prevent the possibility of influence directed toward the Grand Jury by those targeted; to prevent tampering with witnesses; to encourage freely given testimony, and to protect the innocent who are exonerated. (U.S. v. Procter & Gamble (1958 356 U.S. 677 at 681-682, fn. 6. The court also recognized that once the case has made a transition from the investigative phase into a court adjudication, there may 7

be need for court orders permitting examination and review of aspects of the Grand Jury proceedings -- including the testimony of witnesses. (See Douglas Oil v. Petrol Stops Northwest (1979 441 U.S. 211, 219-220; see also, California Penal Code sections 938.1; 924.4; 924.6; 924.2 -- which permit the production of Grand Jury transcripts under a variety of circumstances. The State Supreme Court also reviewed the policies surrounding the secrecy afforded Grand Jury proceedings in McClatchy Newspapers v. Superior Court (1988 44 Cal.3d 1162. It reiterated that one of the reasons for the maintenance of secrecy especially during the Grand Jury process (as distinguished from the later criminal case adjudication was the protection of Grand Jurors from undue influence from the sovereign or executive. (Id. at 1173; also 1182-1183, fn. 14. But after the filing of the indictment, the process clearly changes. For that reason, California criminal procedure recognizes that: "...the primary function of the Grand Jury is to investigate the crime charged and to determine whether probable cause exists to return an indictment for that offense." (Cummiskey v. Superior Court, supra 3 Cal.4th 1018 at 1036. As the Supreme Court noted: In other words, the Grand Jury serves as part of the charging process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury. (Id. at 1026 (italics in original Whether the case is originated by complaint, and thus subject to review by a magistrate at a preliminary examination, or by the Grand Jury 8

process, it is clear that the initial process and procedure is subject to pretrial review through a demurrer and/or under Penal Code sections 995 and 999a. Indeed, as pointed out by the state Supreme Court, where the accused is claiming that the Grand Jury "...may have indicted [her or him] on less than reasonable or probable cause...the indictment was plainly subject to a motion to set it aside on that ground under section 995, subdivision (a(1(b." (Cummiskey at 1022, fn.1 The profound effect of the transition between investigation and adjudication is the point of significance. As the U.S. Supreme Court pointed out succinctly in Douglas Oil, supra, a "...court called upon to determine whether Grand Jury transcripts should be released necessarily is infused with substantial discretion." (Id. at 223 Petitioner has cautioned this Court that reference to Federal procedure (and related case citations is inappropriate. (Reply Brief at pps. 2-3 CACJ respectfully points out that its arguments here are supported by "pure" California law. But in Grand Jury related matters, as the state Supreme Court has pointed out, it is appropriate to go beyond the California legal idiom to achieve understanding of the validity of a given argument. This point was specifically made by the state Supreme Court in People v. Superior Court (1973 Grand Jury (1975 13 Cal.3d 430. There, the court stressed on several occasions the value of comparing California's understanding of Grand Jury proceedings with that of other states. To achieve what it considered a decision rendered in "...light of the uniformity 9

of...common law decisions" (Id. at 441 2 As both the California and United States Supreme Courts have recognized in cases cited here, the Grand Jury is an ancient institution, which has been used throughout the United States. Thus, while Petitioner may be correct that there are variations in the practices, the uses of comparisons with, and analogies to the various interpretations offered by other states' courts on the question at hand has been recognized as valuable in this type of litigation. 3 And indeed, if there is a point of departure for further discussion of the issue presented, it is that California does not adhere to the high level of secrecy in Grand Jury proceedings used in other states: California is one of the few states that has rejected the traditional secrecy of Grand Jury transcripts. (Judicial Council Report to the Governor and Legislature, January 4, 1971, p. 20. Thus, part of the reason that Petitioner's argument should fail is that he does not take into account California's view of post-indictment review of Grand Jury proceedings. It is not only on this point, but also on the law describing the large degree of supervision that California courts have over the Grand Jury process, and its product, that the decision in this case should 2 In rendering its decision in the (1973 Grand Jury case the court reviewed federal court decisions (Id. at 436, fn. 4 as well as decisions rendered by other state courts. (Id. at 440-441. 3 In McClatchy, supra, 44 Cal.3d. 1162, a case relied upon by Petitioner, the state Supreme Court discusses federal Grand Jury related law at length, relying on several U.S. Supreme Court cases in its analysis. (Id. At 1172-1178. 10

revolve. // // // // II CALIFORNIA HAS TRADITIONALLY RECOGNIZED JUDICIAL SUPERVISION OF THE GRAND JURY PROCESS, AND BOTH PROCEDURAL RULES AND POLICY ARGUMENTS SUPPORT THE DISCLOSURES ORDERED HERE In the narrowest sense, Petitioner's argument is defined as dubious by a statutory scheme that clearly provides that at least some of the record of the Grand Jury process is available (post formal charging not only to the defendant and his attorney, but also to the public unless a contrary order is entered. (See, Penal Code Section 938.1(b. It is important to recognize that the Penal Code does not require that all Grand Jury proceedings be kept secret. Rather, the Penal Code specifies how and under what circumstances specific Grand Jury information may be released (whether charges have been filed or not. During the course of its life, the Grand Jury is subject to judicial control and supervision. This fact has lead the Grand Jury to be described as a `judicial body' (See, Ex Parte Sternes (1889 82 Cal.245, 247. Elsewhere, it is described as an `instrumentality of the courts of this state'. (See, In re Shuler (1930 210 Cal.377, 405. It has also been recognized that courts in this state have inherent 11

supervisory powers, within constitutional limitations, to control litigation before them. (See, Walker v. Superior Court (1991 53 Cal.3d 257, 267 relying in part on Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986 176 Cal.App.3d 1108 at 1116-1117. The state Supreme Court has ruled that there are instances in which even in the absence of specific statutes authorizing judicial action in the context of Grand Jury investigations, a court can take action. (People v. Superior Court, supra 13 Cal.3d at 433-434, dealing specifically with a restricted court review of Grand Jury reports. Once the transition from investigation to court-hosted adjudication occurs, however, it is clear that the courts then have a much greater prerogative to provide the accused with the breadth of information that will be necessary to assure the integrity of proceedings, the maintenance of the public interest and the protection of rights. (See, also, Cummiskey v. Superior Court, supra, 3 Cal.4th at 1022, fn.1 acknowledging the propriety of review of specific aspects of the Grand Jury process including the propriety of instructions through a 995 motion and a 999a review; see, also, Mannon v. Frick (Mo. 1956 295 S.W.Rptr 2d 158 at 163. Further, the type of disclosure authorized here makes sense, and can be harmonized with the Penal Code's authorization for limited disclosure of Grand Jury transcripts to the defendant even where some protective order may be entered under Penal Code Section 938.1(b insofar as public disclosure is concerned. Here, the party that sought disclosure is the defendant in a contested criminal case, and Real-Party-In-Interest has well 12

set forth the vast array of rights that are invoked wherever the Constitutions of California and the United States regulate judicial proceedings. CONCLUSION CACJ respectfully urges this Court to uphold Respondent's Order. This is an important case in view of the use of the Grand Jury throughout California to indict extremely serious cases. As CACJ has pointed out, Cummiskey v. Superior Court, supra, examined the accused's ability to seek review of important aspects of the process by which she or he was indicted by the Grand Jury. There is no reason for this Court's ruling to contradict that one, or to open to question the courts' inherent power to give life to a statutory scheme, contained in this instance in the Penal Code, which allows for the dissipation of aspects of Grand Jury secrecy after an indictment has been returned. Dated: January 21, 1999 Respectfully submitted, I, Colette Jappy, declare: JOHN T. PHILIPSBORN Chair, Amicus Committee CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE PROOF OF SERVICE BY MAIL That I am over the age of 18, employed in the County of San Francisco, California, and not a party to the within action; my business address is 507 Polk Street, San Francisco, California. On January, 1999 I served the within MOTION BY CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE FOR 13

PERMISSION TO FILE AN AMICUS BRIEF UNDER RULE 14(C AND BRIEF ON THE MERITS SUPPORTING RESPONDENT AND REAL PARTY on the parties in this action by placing a true and correct copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at San Francisco, California, addressed as follows: Attorney General Attn: Eugene Kaster, Deputy Attorney General 50 Fremont Street, Ste. 300 San Francisco, CA 94105-2239 Greg Paraskou Deputy Public Defender 120 W. Mission Street San Jose, CA 95110 Clerk of the Superior Court 190 W. Hedding Street San Jose, CA 95110 Hon. Melinda Stewart, Judge of the Superior Court 190 W. Hedding Street San Jose, CA 95110 The Office of the District Attorney Attn: William W. Larsen, Assistant District Attorney 70 West Hedding Street San Jose, CA 95510 correct. I declare under penalty of perjury that the foregoing is true and Executed on January, 1999 at San Francisco, California. Colette Jappy 14